Image courtesy: https://www.mappls.com/

Jan 27, 2023

By: Venkatesh Nayak

Readers may remember from earlier this week, a detailed write-up about the refusal of the Union Ministry of Information and Broadcasting (MoI&B) to publicly disclose orders to block content on social and digital media platforms under the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (2021 Rules) notified under the Information Technology Act, 2000 (IT Act). The Ministry's Central Public Information officer (CPIO) rejected a request to publish the proceedings of the Inter-Departmental Committee which issues these directions. The CPIO claimed 'confidentiality' for the proceedings of the Review Committee which is tasked with reviewing such directions and rejected a request to publish them also under The Right to Information Act, 2005 (RTI Act).

The story of the next stage of this Quest for Transparency with regard to State action to block content disseminated through Twitter and other social and digital media platforms is given below. In a nutshell, the outcome of the next three RTI interventions can be described as follows:

1) There is an increase of almost 20% in the number of Twitter URLs blocked during the year 2022 as compared with similar action taken in 2021;

2) There is an increase of almost 3.5% in the number of instances in which social and digital media content (other than Twitter) was directed to be blocked during the year 2022, as compared with similar action taken in 2021;

3) The Government's Committee appointed to issue directions to block public access to content on Twitter and other social and digital media platforms met more often in 2022 as compared with 2021; 

4) The Ministry of Electronic and Information Technology (MeitY) has refused to share the materials placed before and the proceedings of the said Committee and also those of the Committee which reviews such directions, citing a 'confidentiality' clause in the Information Technology (Procedures and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (2009 Blocking Rules);

5) Claiming a fiduciary relationship, the MeitY has refused to publicly disclose the papers relating to a case, where the blocking orders against some tweets, is currently being heard by the High Court of Karnataka, behind closed doors; and

6) The 2009 Blocking Rules were tabled in both Houses of Parliament as required under Section 87(3) of the IT Act. However, the CPIOs of the Secretariats of both Houses of Parliament stated that the Rules were never taken up by the respective Committees on Subordinate Legislation for detailed scrutiny.

Details of the three RTI interventions are given below.

The 1st RTI Intervention:

Time and again, Members of Parliament (MPs) have sought statistics in both Houses about the number of instances in which the 2009 Blocking Rules were invoked to block public access to content on platforms like Twitter and other social and digital media. In response to their questions, MeitY has presented only year-wise number of instances of such action taken in recent years and no other details.

So on 14th December, 2022, an RTI application was submitted to MeitY through the RTI Online Facility stating as follows:

"I. I would like to obtain access to the following information under the RTI Act, 2005 with regard to the implementation of Section 69A of the Information Technology Act, 2000 & the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, in the form specified at paragraph no. (II) below:

1) The total number of organisations under the Union Government that have intimated to the Department of Information Technology (DeitY), the appointment of their Nodal Officers under Rule 4, as on date,

2) The State & Union Territory (UT)-wise number of organisations that have intimated to DeitY the appointment of their Nodal Officers under Rule 4, as on date,

3) A legible copy of the official records containing the name & rank of the current Designated Officer under Rule 3 & the name & rank of the current Chairperson & Members of the Committee constituted under Rule 7,

4) The exact dates on which the Committee constituted under Rule 7 held its meeting since 01 January, 2021 till date,

5) The number of requests received from Nodal Officers designated by organisations under:

a) the Central Government,

b) every State Government, &

c) every UT administration-

for blocking Twitter URLs that were placed before the Committee constituted under Rule 7, for examination, during the aforementioned period,

6) The month-wise number of recommendations issued by the Committee constituted under Rule 7, upon examination of every aforementioned request placed before it, during the aforementioned period,

7) The exact date on which every recommendation referred to at sub-paragraph no. (6) above, was forwarded to the Secretary, DeitY under Rule 8(5),

8) The total number of recommendations referred to at sub-paragraph no. (6) above, which received the approval of the Secretary, DeitY under Rule 8(6), along with the exact date on which every approval was communicated by the said Secretary to the Designated Officer,

9) The total number of recommendations referred to at sub-paragraph no. (6) above, which did not receive the approval of the Secretary, DeitY, along with the exact date on which such non-approval was communicated by the said Secretary to the Designated Officer,

10) The exact dates on which the Review Committee specified in Rule 14 held its meeting during the aforementioned period, &

11) The total number of orders issued by the aforementioned Review Committee setting aside the directions to block Twitter URLs during the aforementioned period.

II. Form of access: Kindly publish all the information described at paragraph no. (I) above on your official website & inform me of the respective URLs by email.

III. Kindly note, all information described above is in the nature of information that is required to be disclosed suo motu under various clauses of Section 4(1) read with Section 4(2) of the RTI Act. As I have not been able to find any of this information on your website, I am submitting this formal request."

Click here for the RTI application.

MeitY's reply

After a delay of forty days, MeitY's CPIO uploaded an unsigned reply on the RTI Online Facility giving information against some queries but rejecting others citing the strict confidentiality requirement under Rule 16 of the 2009 Blocking Rules. The CPIO's reply may be summarised as follows:

1) MeitY has published the details of the Nodal Officers appointed in the Ministries and Departments of the Union Government on its website and that the latest information was attached to the reply. (The CPIO did not provide the exact URL nor was there any attachment. Perhaps it is being sent by post.)

2)  MeitY has published the details of the Nodal Officers appointed in the State Governments and Union Territories Administration on its website and that the latest information was attached to the reply. (The CPIO did not provide the exact URL nor was there any attachment. Perhaps it is being sent by post)

3) The Gazette notification regarding the appointment of the Designated Officer is attached (There was no attachment. Perhaps it is being sent by post). Additionally, the CPIO repeated the composition of the Committee constituted under Rule 7 (see a summary of the 2009 Blocking Rules at the end of this write-up).

4) The Committee constituted under Rule 7 to examine requests/complaints for blocking access to information met 39 times in 2021 and 53 times in 2022.

5) The Committee constituted under Rule 7 recommended blocking directions for a total of 6268 Twitter URLs between 01 January, 2021 and 31 December, 2022. The CPIO rejected the request for Central, State and UT-wise data regarding requests made for blocking, citing Rule 16.

6) The CPIO stated that a total of 6096 URLs were blocked in 2021 and 6775 in 2022 which included all types of URLs such as webpages, websites, specific pages on social media platforms etc. He also stated that month-wise data about blocking directions issued by the Committee was not being maintained.

7) The CPIO stated that all recommendations made by the Committee in 2021 and 2022 for blocking public access to information were put up for the approval of the Secretary, MeitY and his approval was obtained, on file, for all of them. The CPIO also replied that MeitY does not maintain date-wise information about these matters.

8) As regards the record of proceedings before the Review Committee, the CPIO cited Rule 16 to reject the request.

Click here to read the CPIO's reply.

Analysis of MeitY's data

The statistics tabled by MeitY in the Lok Sabha on 27/07/2022 and the figures tabled by MeitY in the Rajya Sabha on 29/07/2022 indicate that orders for blocking Twitter URLs were issued in 2851 cases in the year 2021 and 1122 cases up to June 2022. Further, according to the data tabled in the Rajya Sabha on 25/03/2022 MeitY stated that a total of 6096 URLs (Twitter and others) were directed to be blocked in the year 2021. The number of similar blocking orders issued in 2022 was 1264 as on the date of the reply. 

It is against the above baseline data that the following findings from the analysis of information furnished under RTI are being presented:

• In 2021, according to the data tabled in Parliament, 2851 Twitter URLs were directed to be blocked. So in 2022, the number of Twitter URLs blocked will be 3417 (i.e., 6268 minus 2851). This is a 19.85% increase over the 2021 figures;

• In 2021, social and digital media content other than on Twitter was blocked in 3245 cases (i.e., 6096 minus 2851). In 2022 this figure was 3358 (i.e., 6775 minus 3417). This is a 3.48% increase over the 2021 figures;

• In 2021, the Committee under Rule 7 of the 2009 Blocking Rules met 39 times to issue blocking recommendations. In 2022 the Committee met 53 times for a similar purpose. This is an almost 36% increase in the frequency of meetings;

• MeitY's CPIO stated that date-wise and month-wise data about blocking directions was not being maintained. So if the average is calculated on the basis of data furnished by him under the RTI Act, more than 237 URLs of Twitter were blocked per month, in 2021. The average increased to more than 284 twitter URLs blocked per month in 2022; 

• In 2021 on an average, more than 270 blocking orders were issued per month for social and digital media content other than Twitter. The average in this category of blocking orders rose up to almost 280 per month in 2022;

• The average for Twitter URLs recommended to be blocked by the Committee under Rule 7 works out to more than 73 per month. In 2022 this average fell to more than 64 per month, as the Committee met more often;

• The average for social and digital media content other than Twitter recommended to be blocked by the Committee under Rule 7 in 2021 works out to more than 83 per month. In 2022 this average fell to more than 63 per month, as the Committee met more often;

• If the Twitter and non-Twitter URLs are taken together, the average for blocking orders recommended by the Committee under Rule 7 in 2021 is more than 156 per month. In 2022 this average fell to a little more than 127 per month as the Committee met more often;

• According to MeitY's CPIO, all blocking orders (Twitter and other social and digital media content) recommended to the Secretary, MeitY on file were approved in 2021 and 2022. So the average for the Secretary, MeitY works out to approving 508 orders per month. In 2022, this average rose to 564 approvals per month;

• According to Rule 14 the Review Committee is required to meet at least once in two months. MeitY's CPIO did not provide any details of the frequency of the meetings of this committee. Assuming that the Review Committee worked according to the rule, they should have met at least six times each in 2021 and 2022. The average number of blocking orders (Twitter and other social and digital media) reviewed by them in 2021 works out to 1016 per meeting. In 2022, the average increased to a review of 1129 blocking orders per meeting; 

• In the absence of further data, it is not possible to identify how many such orders were confirmed or not approved by the Review Committee. 

Interestingly, while claiming that MeitY is not part of the Review committee under Rule 14, the CPIO nevertheless invoked the Rule 16 to reject publication of the record of its proceedings.

The 2nd RTI Intervention

On 05/07/2022, Twitter, Inc. moved the High Court of Karnataka against a bunch of blocking and take down orders issued by MeitY. After issuing notice and conducting a hearing or two publicly, the Single Bench agreed to receive the copies of blocking and take down orders from the petitioner in sealed cover. It also opened the envelope and put the contents back again as the Petitioner and Respondent (i.e., the Union of India) "graciously and rightly" requested it to do so (this phrase in double quotes is from one of the Court's Daily Orders- see the 3rd attachment). The Union Government put in a request for in camera (behind closed doors) hearing of the matter. It is not clear whether the Court has granted this request.

Click here to read the compilation of the Daily Orders of the High Court displayed on its website.

Having read media reports about this curious matter, another RTI application was submitted to MeitY through the RTI Online Facility stating as follows:

"I. In relation to the litigation instituted before the Hon. High Court of Karnataka (Principal Bench at Bengaluru) in the matter of Twitter Inc. vs Union of India, W.P. No. 13710/2022, I would like to obtain access to the following information from your public authority under the RTI Act, 2005, in the form specified at paragraph no. (II) below:

1) A legible photocopy of the complete set of documents containing the text of the Writ Petition along with all annexures served by the Petitioner on Respondents No. 1 and No. 2, in the aforementioned matter,

2) A legible copy of the complete set of documents containing the text of the reply of Respondents No. 1 and No. 2 to the said Writ Petition, along with annexures, if any, served on the Petitioner in the aforementioned matter,

3) A legible copy of all written submissions along with annexures, if any, whose copies were served by the Petitioner on Respondents No. 1 and No. 2 subsequent to the admission of the Writ Petition by the Hon. High Court of Karnataka in the aforementioned matter, till date, and

4) A legible copy of all replies/counters/rejoinders, by whatever name called, along with annexures, if any, whose copies were served by Respondents No. 1 and No. 2 on the Petitioner subsequent to the receipt of written submissions referred to at sub-paragraph no. (3) above, in the aforementioned matter, till date.

II. Form of access requested: Kindly upload all the information described above on your official website and inform me of the respective URLs by email.

III. Kindly note, the only sources of information about the aforementioned litigation, are contemporaneous reports published on various mass media platforms. As the aforementioned matter appears to relate to blocking orders issued by Respondent No. 2  regarding information that was already in the public domain and already viewed by numerous persons, there is a very strong element of public interest in making public disclosure about the records described at paragraph no. (I) above. So, I believe all the information described at paragraph no. (I) above is in the nature of information that ought to be disclosed suo motu, under various clauses of Section 4(1), read with Section 4(2) of the RTI Act. As I have not been able to find any of the information described at paragraph no. (I) above, on your official website, I am submitting this formal request."

MeitY's reply

After a delay of forty one days, the CPIO uploaded a one line reply on the RTI Online Facility stating as follows: 

"Ministry of Electronics and Information Technology has fiduciary relationship hence the requested information can not be shared."

A hard copy of the reply is awaited as on date. Click here  to read the RTI application and the reply.

The 3rd RTI Intervention

Section 87(3) of the IT Act requires the Union Government to table every Rule made to give effect to its other provisions, in both Houses of Parliament as soon as the Rule is notified. Section 87 is reproduced below:

"(3) Every notification made by the Central Government under sub-section (1) of section 70A and every rule made by it shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that notification or rule." (emphasis supplied)

In other words, every Rule made by the Union Government under the IT Act must be subjected to parliamentary scrutiny soon after it is notified in the official gazette and becomes operational. This is a common provision in all parliamentary statutes which ensure that the Government does not abuse its rule making power to transgress the letter and spirit of the principal enactment. Any MP may move a motion for modifying any Rule or simply annulling any or all of the Rules. A simple majority is required for this motion to be carried through either House. The Committees on Subordinate Legislation of the Lok Sabha and the Rajya Sabha may also take up the Rules so tabled for detailed scrutiny and submit their report to the Chair of the respective Houses. In such proceedings, the Government is required to defend the Rules before the Committees.

Two identical RTI applications were submitted to the Secretariats of the Lok Sabha and the Rajya Sabha to ascertain compliance with Section 87(3) of the IT Act. The following information was requested:

"I would like to obtain the following information from your public authority under the RTI Act, 2005:

1) The exact date on which the Information Technology (Procedure for Safeguards for Blocking for Access of Information by Public) Rules, 2009 notified by the Government of India on 27 October, 2009, and published in the Gazette of India as G.S.R. 781 (E), were tabled in the Lok Sabha,

2) The exact date on which the Rules specified at paragraph no. (1) above, were selected by the Committee on Subordinate Legislation of the Lok Sabha for scrutiny,

3) A legible copy of the report of the aforementioned Committee if any, that was tabled in Lok Sabha upon completion of the scrutiny of the Rules specified at paragraph no. (1)," 

Click here for details of the remaining queries of the above RTI application.

The CAPIOs' reply

The CAPIO, Lok Sabha replied that the 2009 Blocking Rules were tabled in the House on 14/12/2009. The CAPIO, Rajya Sabha stated that all information regarding the papers laid on the table of the House were on the official website and transferred the RTI application to the Lok Sabha. The CAPIO, Lok Sabha re-sent his earlier reply a few days later. Both CAPIOs confirmed that the Committees on Subordinate Legislation had not taken up the 2009 Blocking Rules for detailed examination.

Click here to read the RTI applications and the replies.

Conclusion

The increasing use of 2009 Blocking Rules: The data tabled in Parliament which is discussed above also indicates how the use of the 2009 Blocking Rules for blocking Twitter URLs has increased from as low as eight in 2014 to 3417 in 2022. It has been an ever-rising graph. Further, MeitY issued blocking only 1385 blocking orders (Twitter and other social and digital media content included) in 2017. It rose sharply to 9,849 in 2020- the highest ever and fell to 6096 in 2021. But it was on the rise again in 2022. This trend implies, either the abuse of such platforms has increased phenomenally or the sensitivity of the Union Government towards the views and opinion which are not in line with its own thinking is growing more acute or it is a combination of both trends. A deeper analysis of this phenomenon is not possible until official records relating to the use of the 2009 Blocking Rules are placed in the public domain.

The practice of confidentiality: The major obstacle to conducting such analysis is the confidentiality requirement imposed by Rule 16. There is little information in the public domain about any MP moving a motion to seek amendment of the 2009 Blocking Rules after they were tabled in Parliament. Nor did the Committees on Subordinate Legislation take them up for detailed scrutiny despite the fact that such powers are open to abuse in the absence of safeguards. Nothing in Section 69A of the IT Act requires the proceedings with regard to blocking of content on media platforms to be kept confidential. This is an imposition through the delegated legislation route, which Parliament has not bothered to scrutinise, till date. Further, denying access rights under the RTI Act by invoking Rules under another Act is also illegitimate to say the least because subordinate legislation cannot override principal enactments. These matters will have to be debated in Parliament or challenged in the Courts for an appropriate remedy.

The impracticality of the blocking mechanism: The data with regard to the issuance of blocking orders obtained under RTI and analysed above shows the absurdity of the situation- the Secretary MeitY and the Review Committee are required to apply their mind to hundreds of such orders every month before giving their approval. How much time they have actually devoted to such matters is anybody's guess. Further, every stage of the blocking mechanism is completely government-dominated. This is highly undesirable given the latest controversy that the BBC's documentary film on the 2002 Gujarat violence have created. Such matters must be impartially examined by a body of independent experts as the government will always be an interested party. The current three-stage mechanism is highly unsuitable for a functional democracy. What the UPA regime did by crafting the Blocking Rules in 2009, the NDA is continuing to make use of in 2023 without a murmur.

The judicial process: It is also very worrying that the Hon. High Court of Karnataka has granted so much latitude to the Petitioner in the ongoing case against the blocking orders. What has been blocked on Twitter through these orders would have been seen by thousands of Tweeples. The need for secrecy in such matters is perplexing to say the very least. If constitutional courts permit sealed-cover procedures while hearing matters whose cause of action relates to materials that were once in the public domain, people's faith in the judicial process will begin to take a severe beating.

What are the 2009 Blocking Rules?

Now that the story of the RTI interventions has been told, it is important to understand the 2009 Blocking Rules which provide the context in which these interventions were made. 

Parliament incorporated Section 69A in the Information Technology Act, 2000 (IT Act) through an amendment in 2009 to empower the Union Government or any of its specially authorised officers to direct any Government agency or intermediary to block public access to content generated, transmitted, received, stored or hosted in any computer resource. The reasons for blocking access may be any one or more of the following: in the interest of the sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to the preceding grounds. Reasons for issuing such blocking orders must be recorded in writing. In October, 2009, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public), Rules were notified creating a mechanism and laying down procedures for the Department of Information Technology (DeitY) to implement Section 69A as and when required.

Under Rule 3 of the 2009 Blocking Rules, a Designated Officer is authorised to issue directions for blocking access by the public any information generated, transmitted, received or stored or hosted in any computer resource under Section 69A(2) of the IT Act. Under Rule 4, a Nodal Officer is required to be appointed by every department under the Union and State Governments including the Union Territories administration and any agency under them that the Central Government may notify in the Official Gazette. Under Rules 6 any person may send a complaint to such Nodal Officers for blocking access to information for the public which is on a computer resource. If the organisation which received such a complaint examines is satisfied that it requires action to be taken in relation to the interests mentioned in Section 69A of the IT Act (see above paragraph), it may send the complaint to the Designated Officer through its Nodal Officer in a prescribed form (see pages 4-5 of the 2009 Blocking Rules).

Under Rule 5, the Designated Officer may direct any agency of the Government or an intermediary to block access to information on a computer by the public on receipt of such a complaint or on a request from a competent court. Under Rule 7, a Committee chaired by the Designated Officer and consisting of representatives of the Ministries of Law and Justice, Home Affairs, Information and Broadcasting and the Indian Computer Emergency Response Team (CERT-IN) set up under Section 70(1) of the IT Act (all not below the rank of Joint Secretary) examine the request for blocking access to the offending information.

Rule 8 contains the procedure that the said Committee must adopt while examining the request for blocking content. The Committee's recommendation is submitted to the Secretary, MeitY for approval. Upon receiving such approval, the Designated Officer is required to direct any agency of the government or an intermediary to block public access to the information generated, stored, received, transmitted or hosted on their computer  resource.

Rule 9, empowers the Designated Officer to submit a request directly to the Secretary, MeitY to block public access to any offending information on a computer resource if it is a case of emergency nature and no delay is acceptable. The Secretary, MeitY is required to record his reasons in writing to direct blocking of access to content on an emergency basis, if satisfied by the nature of the case. However all such emergency directions must be brought before the Committee constituted under Rule 7 for examination, within 48 hours. If the Committee recommends continued blocking, final orders may be issued by the Secretary, MeitY. If the Committee does not approve the emergency blocking order, the Secretary must revoke the order and direct the unblocking of public access to information.

Under Rule 13, every intermediary is required to designate a person to handle such blocking directions. Rule 14 requires every blocking order to be examined by a Review Committee for its conformity with the aforementioned Rules. If the Review Committee sets aside the blocking orders, the information is required to be unblocked for public access.

Rule 15 makes the Designated Officer the custodian of all complaints received and subsequent proceedings launched under these Rules. Rule 16 requires strict confidentiality to be maintained regarding the requests and complaints received and actions taken on them. The proforma in which complaints may be made to the Designated Officer is given at the end of the 2009 Blocking Rules.

All facts are in the public domain. Views are personal.

CHRI's Trail of Inquiry: DeitY-TwitterTakeDownOrders-RTIappln-Dec22 | DeitY-TwitterTakeDownOrders-RTI-CPIOreply-Jan23 |TwitterCase-DailyOrdersCompilation-KarHC-Jan23 | MeitY-TwitterCaseCourtPapers-RTIdocs-Jan23 | Parliament-ITRules-Tabling-RTIdocs-Jan23